Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. VD061925 James D. Lia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Nejadpour & Associates, F. Bari Nejadpour and Evelyn J. Abasi for Appellant.
John A. Balent for Respondent.
WOODS, J.
Appellant Banuelos (Jose) appeals from the trial court’s order denying his motion to quash service of summons on the grounds the trial court did not have personal jurisdiction over him on respondent Alicia Banuelos’ (Alicia) petition for dissolution of marriage, spousal support and division of assets and real property. Jose claims the trial court lacked jurisdiction in this matter because he is not a California resident and has never lived in California; he owns no property here; and he holds no assets, has no business dealings nor any contact with this state. He states that he is a resident of Illinois and that the real property which Alicia seeks to divide is located in Illinois. As we shall explain, Alicia has failed to demonstrate the California courts have either in rem or personal jurisdiction over Jose sufficient to divide marital property or award support and thus the court erred in failing to grant the motion to quash. Nonetheless, because Alicia appears to be a California resident, the family law court has jurisdiction to determine the status of the marriage and grant a divorce. Accordingly, we reverse and remand for further proceedings.
For ease of reference we refer to the parties by their first names. We mean no disrespect thereby.
FACTUAL AND PROCEDURAL BACKGROUND
Jose and Alicia were married in 1977 and they have no minor children. According to Jose’s declaration filed in support of his motion, since 1988 he has continually lived, worked and paid taxes in Illinois. In 1994 Jose bought a house in Bensenville, Illinois. Jose stated that he has never done business in the state of California, has no property here and has never lived or traveled to this state.
In July 2006, Alicia filed a petition for dissolution of marriage in Los Angeles County Superior Court. In the petition she indicated that she was a resident of California. In addition to seeking a divorce, the petition also sought determination of separate and community property rights in personal property and real property, specifically the home located in Bensenville, Illinois. Alicia also sought an order awarding her spousal support.
Jose was served with the petition at his home in Illinois in August 2006. Thereafter, Jose made a special appearance to file a motion to quash the service of the summons, asserting the court lacked personal jurisdiction over him because he was not a resident of California
At the hearing on the motion Alicia filed a response in which she attested to the facts concerning service of the divorce petition and further stated that she has lived in California since 1990.
The court denied the motion.
Jose timely appeals.
DISCUSSION
On appeal, Jose contents the family law court had no jurisdiction to act in the divorce proceedings and therefore erred in failing to grant his motion to quash. Jose is partially correct.
a. Jurisdiction.
“The term ‘jurisdiction,’ ‘used continuously in a variety of situations, has so many different meanings that no single statement can be entirely satisfactory as a definition.’ [Citation.] Essentially, jurisdictional errors are of two types. ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.].” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661; accord, In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.)
“However, ‘in its ordinary usage the phrase “lack of jurisdiction” is not limited to these fundamental situations.’ [Citation.] It may also ‘be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ [Citation.] ‘“[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.”’ [Citation.] (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.)
With regard to personal jurisdiction, California is empowered to exercise jurisdiction on any basis consistent with the United States and California Constitutions. (Code Civ. Proc., § 410.10; Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268; In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1425, fn. 4.) The state’s exercise of personal jurisdiction satisfies due process as long as it “‘does not violate “‘traditional notions of fair play and substantial justice.’”’ [Citations.]” (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 268.) Under these notions, personal jurisdiction can be on the basis of physical presence in the forum state, domicile, consent, or minimum contacts. (Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 226.)
b. Jurisdiction and other aspects of the Family Law Court.
Jurisdiction to adjudicate matters in a marital case involves three requirements: (1) that the court have authority to adjudicate the specific matter raised by the pleadings (subject matter jurisdiction) (see Fam. Code, § 2010); (2) that the court have “in rem” jurisdiction over the marital “res” to terminate marital status (“in rem” jurisdiction) and (3) that the court have jurisdiction over the parties to adjudicate personal rights and obligations (personal jurisdiction). (See Code Civ. Proc., § 410.10; Burnham v. Superior Court (1990) 495 U.S. 604; Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 225.) Once the court has met these jurisdictional requirements it may determine not only the marital status, but also the personal rights and obligations of the parties, including custody and support of minor children of the marriage, spousal support, settlement and division of the parties’ property rights, and the award of costs and attorney fees. (Fam.Code, § 2010.)
Family Law Rules of the California Rules of Court, rule 5.104 (former Cal. Rules of Court, rule 1212) limits the relief that parties to a dissolution action may obtain to that specified in the rules of the Family Code. Family Code section 2010 provides that in proceedings for dissolution, the court has subject matter jurisdiction to “make orders that are appropriate concerning the following: [¶] (a) The status of the marriage. [¶] (b) The custody of minor children of the marriage. [¶] (c) The support of children for whom support may be ordered . . . . [¶] (d) The support of either party. [¶] (e) The settlement of the property rights of the parties. [and] [¶] (f) The award of attorney’s fees and costs.” (See also Fam. Code, §§ 3000 et seq. [child custody and visitation]; § 3500 et seq. [discussing support, including child support]; § 4000 et seq. [court ordered child support].)
Jurisdiction to dissolve the status of marriage is a form of jurisdiction in rem. The personal status of the parties to the marriage is considered the “res” or subject matter of the divorce proceeding. California has jurisdiction over the personal status of persons who are domiciled within its borders. (Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 225; Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250.) Domicile is therefore the basis for jurisdiction in this marital dissolution action. (See Fam. Code, § 2320.)
The bona fide domicile of one spouse in a state is sufficient to give that state power to grant a valid divorce entitled to full faith and credit elsewhere. (Fam. Code, § 2320 [“A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.”]; Williams v. North Carolina (1942) 317 U.S. 287, 298-299 [In an action for divorce, domicile is dispositive, since “the domicile of one spouse within a State gives power to that State . . . to dissolve a marriage whosesoever contracted.”].) The state in which one spouse is domiciled is deemed to have sufficient interest to terminate the marriage. Thus, a state has the power to grant an ex parte divorce to a domiciliary wife without personal jurisdiction over the husband or quasi-in-rem jurisdiction over his property. (Williams v. North Carolina, supra, 317 U.S. at p. 303; Goodwine v. Superior Court (1965) 63 Cal.2d 481, 483.)
As a result of the principle of divisible divorce and the fact that Alicia has established a bona fide domicile in California, the courts of this state now have jurisdiction to act on Alicia’s petition for marital dissolution irrespective of the fact that Jose does not reside in this state and whether or not California courts can also exercise personal jurisdiction over him or in rem jurisdiction over the marital property. Were dissolution of the marriage the only relief Alicia had requested in the petition, our analysis would end here and we would affirm the judgment. Such is not the case, however.
“The marital relationship is sever able from the property rights which it creates, and final settlement of the relationship should not be dependent upon final settlement of corollary property interests. [¶] The concept of divisible divorce has become established in our law. . . . [M]any cases have held that a divorce action which severs the personal relationship of the parties does not necessarily determine their property rights. . . . [T]hese cases . . . recognize the basic proposition that severance of the personal relationship is divisible from a determination of property and support rights. [¶] The divisible divorce is more than a jurisdictional concept. Severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness . . . . [¶] . . . Entry of the final decree is not a reward for good behavior nor is the refusal to grant it a punishment. Its purpose is to finally dissolve a relationship which has been severed in fact.” (Hull v. Superior Court (1960) 54 Cal.2d 139, 147-149.)
In addition to dissolution, Alicia sought a division of the marital assets including a home located in Illinois and an award of support. The California court’s exercise of jurisdiction to determine these matters requires more than Alicia’s domicile in this state. In an action for support and division of property, however, domicile is neither sufficient nor necessary for jurisdiction. Instead jurisdiction depends on acquiring personal jurisdiction over Jose, who is a resident of Illinois or quasi-in-rem jurisdiction over his property. “Due process permits the exercise of personal jurisdiction over a nonresident defendant in the following four situations: (1) where the defendant is domiciled in the forum state when the lawsuit is commenced [citation]; (2) where the defendant is personally served with process while he or she is physically present in the forum state [citation]; (3) where the defendant consents to jurisdiction [citations]; and (4) where the defendant has sufficient ‘minimum contacts’ with the forum state, such that the exercise of jurisdiction would not offend ‘“traditional notions of fair play and substantial justice”’ [citation].” (Muckle v. Superior Court, supra, 102 Cal.App.4th at pp. 225-226, quoting In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1425-1426.) Because Jose is not domiciled in California, was not personally served with process while present in California, and did not consent to jurisdiction, the trial court could only support its denial of his motion to quash the summons served on him in Illinois by finding personal jurisdiction to determine any property rights of the marriage for division on based on Jose’s “minimum contacts” with California.
Here, however, in support of his motion to quash Jose presented a declaration stating that he has no contacts whatsoever with this state and the real property at issue in the petition was located in Illinois. Alicia did not present any evidence to refute Jose’s claim or to establish that any of the unspecified personal property she sought to divide was located in California.
Based on the foregoing, we conclude an inadequate basis exists for a California court to assert personal jurisdiction over Jose or in rem jurisdiction over the property for the purposes of determining the marital property rights thereto or the request for spousal support. Accordingly, the court erred in failing to grant the motion to quash.
In reaching this conclusion, we emphasize the California courts have jurisdiction to adjudicate the status of the marriage due to Alicia’s domicile in California at the time of filing her petition. Thus, Alicia still may obtain a dissolution of the marriage in California. A California court does not, however, based on the record before us have personal or in rem jurisdiction to make determinations concerning division of real property (located in Illinois) or an award of spousal support. Likewise based on the record presented in this appeal, there is no evidence that any other community property (real or personal) is located in this state to justify the exercise of in rem jurisdiction in this matter.
DISPOSITION
The order denying the motion to quash is reversed and this matter is remanded for further proceedings consistent with the views expressed in this opinion. Each party is to pay its own attorney fees on appeal.
We concur:
PERLUSS, P.J., ZELON, J.